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The Loughner Case

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Sirhan Sirhan was sentenced to death by the State of California, not the United States, for the 1968 murder of U.S. Senator Robert Kennedy.  Assassination of a member of Congress was not a federal offense at the time.* 

In 1971, Congress added 18 U.S.C. §351.  Subdivision (c) makes attempted murder of a member of Congress a federal offense punishable by life in prison.  Subdivision (a) applies the federal murder statute (§1111) to murder of members of Congress and Supreme Court Justices, but not lower federal judges.  However, §1114 broadly covers murder of federal employees "while ... engaged in or on account of the performance of official duties."

USDoJ has filed this complaint in the Loughner case.  It charges Loughner under §351(c) as to Congresswoman Giffords.  Section 1114 is invoked as to the murder of Gabriel Zimmerman, an aide to Ms. Giffords, and District Judge John Roll, and as to the attempted murder of aides Pamela Simon and Ron Barber.
For the murders, eligibility for the death penalty requires intent to kill (§3591(a)(2)(A)) and at least one statutory aggravating factor from the list in §3592(c).  That list includes grave risk of death to other persons (5), substantial planning and premeditation (9), and murder of high public officials, including judges, while engaged in or because of performance of duties (14)(D).

The case appears to me to be death eligible for the murder of Mr. Zimmerman, who was engaged in his duties, with the eligibility circumstances of grave risk of death to others and substantial planning and premeditation.  Whether Judge Roll was engaged in his duties is a closer question.

Meanwhile, the State of Arizona should definitely prosecute Loughner for murders and attempted murders of the victims without government connections.  Update: Kim Smith has this story in the local paper, the Arizona Daily Star.  "Loughner will clearly face state charges in regards to those victims who were not named in the federal complaint, [Pima County Attorney Barbara] LaWall said.  The federal government has no jurisdiction over them."  She is still considering whether to file duplicate state-court charges regarding the victims named in the federal complaint.

Will Arizona or the United States seek the death penalty?  Would a jury impose it?  Loughner's mental illness will surely be the primary mitigating factor.  The Unabomber sits in prison, not on death row, because the US Attorney considered his schizophrenia to be sufficiently mitigating not to seek the death penalty.

John Green, father of 9-year-old Christina-Taylor Green, thinks Loughner should be executed, Douglas Montero reports in the New York Post.

* Sirhan's sentence was later reduced to life in prison after the California Supreme Court decided to "interpret" the California Constitution's "cruel or unusual" punishment clause to have a meaning specifically rejected by an express vote of the Constitutional Convention.

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